Sudbury not guilty of charges in 2015 death at downtown job site, appeals court rules

An appeals court has upheld the acquittal of Greater Sudbury on workplace safety charges connected to the Sept. 30, 2015, death of Cécile Paquette at a job site in the city's downtown.

Paquette, 58, was killed while attempting to cross an intersection in the construction zone on Elgin Street when she was struck by a Caterpillar grader being driven in reverse by an Interpaving employee.

Cécile Paquette, 58, was killed while attempting to cross an intersection in the construction zone on Elgin Street when she was struck by a Caterpillar grader being driven in reverse by an Interpaving employee. (File)

The city was charged under the Occupational Health and Safety Act, but found not guilty Aug. 31, 2018, on the grounds that the city was not the employer at the job site, and even if it was, the city had exercised due diligence.

An appeal of that decision went all the way to the Supreme Court of Canada, which ruled in a 4-3 decision that the city was, in fact, the employer.

However, the court didn't rule whether the city should be found not guilty on the basis that it had exercised due diligence. The Crown launched a separate appeal of the acquittal on those grounds.

In a decision dated Aug. 23 of this year, Superior Court Justice R. Dan Cornell dismissed the appeal, ruling there was enough evidence to show the city had exercised due diligence.

In an email to CTV Northern Ontario on Thursday, Crown David McCaskill said they were still considering whether to appeal Cornell's decision.

Greater Sudbury sent this statement to CTV in response to the decision:

"The City of Greater Sudbury has steadfastly defended itself against the charges brought by the Ministry of Labour related to the tragic incident of Sept. 30, 2015. We are encouraged by the court’s affirmation that the city took all reasonable precautions leading up to the event, while remaining mindful of the tragedy. As a municipal service provider, the city is committed to upholding the community’s trust and ensuring the safety and well-being of our residents."

Cécile Paquette, 58, was killed while attempting to cross an intersection in the construction zone on Elgin Street when she was struck by a Caterpillar grader being driven in reverse by an Interpaving employee. (File)

In its appeal, the Crown had argued that given the amount of control the city had over the project, "it had failed to establish that it had exercised due diligence."

"The appellant (Crown) submits that 'the city exercised virtually outright control over the workplace and the workers within it,'" the appeals court decision said.

"In support of this proposition, it was pointed out that the city maintained a trailer at the Elgin Street project, city employees were present at the project on a daily basis, and progress meetings with the contractor were held from time to time."

It also pointed to an incident that took place at the site on Sept. 15, 2015, described as "chaos in the intersection."

" A city employee identified a concern about traffic control at the intersection," the decision said.

"A senior manager at Interpaving responded to the concern. Although the appellant characterizes this as control, the city responds by saying that it was an example of the city’s due diligence as it was the contractor that took the steps to ultimately address the situation and not the city."

While the city paid for police officers to control traffic at the intersection, they were only deployed when they were requested by Interpaving.

Cécile Paquette, 58, was killed while attempting to cross an intersection in the construction zone on Elgin Street when she was struck by a Caterpillar grader being driven in reverse by an Interpaving employee. (File)

Supreme court decision

"Although the city did have a process in place to receive complaints concerning the construction project, it was the responsibility of Interpaving to respond to these complaints once they had been made known by the city," the appeals decision said.

The court also referred to the Supreme Court of Canada decision in this case, which said that when deciding whether due diligence had been exercised, deciding factors include: whether the city has delegated control to the constructor (Interpaving) of the project due to "its own lack of skill, knowledge or expertise"; the degree of control it had over the workers on the project; whether it took steps to evaluate the constructor's ability to comply with workplace safety regulations; and, whether it "effectively" monitored and supervised the constructor's work to ensure compliance with workplace safety rules.

In his decision, Cornell agreed with the trial judge that while the city conducted quality control inspections, that didn't amount to having control over the workplace.

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And he said there was evidence that the city relied on Interpaving because it didn't have the skills or knowledge to complete the work itself.

"We are not familiar with what it means to be a constructor," a city employee testified at the original trial.

"We don’t have the resources or the capacity or the capabilities. It’s very important to us that our general contractors understand what it means to be the constructor and take responsibility for those activities."

As a result, "the trial judge found that the city had paid a premium to Interpaving as Interpaving had the expertise that the city lacked."

There was also evidence that the city monitored and supervised Interpaving's work, for example by taking complaints from the public and raising concerns about fencing, signage and access to crosswalks.

"All of the evidence that I have reviewed was taken into consideration by the trial judge and formed the basis for the trial judge’s finding that the city had exercised due diligence," Cornell said in his decision.

"If the city had exercised the amount of control over the project that was urged by the appellant (Crown), the city would have been a constructor, something that has been rejected at every level of appeal."

To overturn the trial judge's original ruling, he would need to find "palpable or overriding errors," but he found none, Cornell wrote.

"Accordingly, the appeal is dismissed."

Read the full decision here.